Over the past couple of days I’ve been dipping into the new book co-authored by Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts. My interest is drafting contracts, not interpreting them. But to stay out of trouble when drafting contracts, it helps to have a decent grasp of how judges ascertain the meaning of contract language. So I’m happy to have the book.
It begins with an explanation of “textualism,” the approach espoused by the authors, but the bulk of the book consists of discussion of 57 “canons” of interpretation, as well as 13 other notions that the authors don’t endorse. I’ve already found useful their treatment of a few of the canons.
Scalia and Garner describe themselves as “textualists,” in that “they look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.” Or as they say elsewhere, “Textualism, in its purest form, begins and ends with what the text says and fairly implies.” In particular, they disdain the notion of attempting to decipher the intent of the parties to a contract.
This isn’t my turf, and I have no interest in wading into a debate filled with -isms. But from my seat in the bleachers, it seems that Scalia and Garner’s approach bears little relation to the world I live in. If a court has been asked to interpret a contract, that’s because it has failed to accomplish its purpose—to be clear enough that readers won’t have to fight over its meaning. Furthermore, there’s a good chance that it was put together by lawyers for whom drafting consists of regurgitating verbiage of questionable quality and relevance and tweaking it in compliance with urban legends that pass for conventional wisdom. So any “meaning that it has borne from its inception” will likely be accompanied by a good measure of incoherence.
That’s why Scalia and Garner’s canons aren’t about determining actual meaning. Instead, they’re principles for arbitrarily reverse-engineering meaning where meaning is otherwise not apparent. Using principles of construction to cut the Gordian knot of contract uncertainty might be appropriate, but it’s unhelpful to downplay the expediency involved. And why disdain alternative approaches? If review of drafts, notes, and correspondence can shed light on a contract ambiguity, that seems at least as worthwhile a way to attempt to resolve confusion as having a judge select from among alternative meanings.
The uncertain foundation for their textualism perhaps accounts for the dogmatic tone of the book. A principle that they approve of is described as “sound”—a favorite word of old-fogey authoritarians. (I recall Margaret Thatcher wielding “unsound” like a cudgel.) A principle they disapprove of is described as a “falsity.” A view they approve of is “correct”; a court opinion they disapprove of is “incorrect.” The authors note that their approach is “consistent with what the best legal thinkers have said for centuries,” leaving one to wonder what the criteria are for being the best, and who decides. And although others have long used in this context the fusty term “canon,” its ecclesiastical overtones add to the sense that one is reading a tract; “principle” would have been a less loaded word.
As regards the substance, I’ll be filtering it, based on my own research and what other authorities have to say. To get a sense why, see this post by Neal Goldfarb on his LAWnLinguistics blog. It’s about three of Scalia and Garner’s canons, including the “Last-Antecedent Canon”; I too was a bit puzzled by that canon.